1
EXHIBIT 4.6
================================================================================
NEW NISOURCE INC.
AND
BANK ONE, NATIONAL ASSOCIATION, AS COLLATERAL AGENT
AND
BANK ONE, NATIONAL ASSOCIATION, AS SECURITIES INTERMEDIARY
AND
THE CHASE MANHATTAN BANK, AS PURCHASE CONTRACT AGENT
PLEDGE AGREEMENT
DATED AS OF [______________], 200_
================================================================================
RE:
STOCK APPRECIATION INCOME LINKED SECURITIES (SM)
(SAILS (SM))
OF
NEW NISOURCE INC.
2
TABLE OF CONTENTS
R e c i t a l s...................................................................................................1
ARTICLE I-- Definitions and Other Provisions of General Applications..............................................2
Section 1.1. Definitions............................................................................2
ARTICLE II-- Pledge...............................................................................................5
Section 2.1. Pledge.................................................................................5
Section 2.2. Control; Financing Statement...........................................................6
Section 2.3. Termination............................................................................6
ARTICLE III -- Distributions on Pledged Collateral................................................................6
Section 3.1. Income Distributions...................................................................6
Section 3.2. Principal Payments Following Termination Event.........................................6
Section 3.3. Principal Payments Prior To or On Purchase Contract
Settlement Date........................................................................6
Section 3.4. Payments to Purchase Contract Agent....................................................7
Section 3.5. Assets Not Properly Released...........................................................7
ARTICLE IV-- Control..............................................................................................7
Section 4.1. Establishment of Collateral Account....................................................7
Section 4.2. Treatment as Financial Assets..........................................................8
Section 4.3. Sole Control by Collateral Agent.......................................................8
Section 4.4. Securities Intermediary's Location.....................................................8
Section 4.5. No Other Claims........................................................................8
Section 4.6. Investment and Release.................................................................8
Section 4.7. Statements and Confirmations...........................................................8
Section 4.8. Tax Allocations........................................................................9
Section 4.9. No Other Agreements....................................................................9
Section 4.10. Powers Coupled With An Interest........................................................9
ARTICLE V-- Initial Deposit; Establishment of Treasury Units and Reestablishment of
Corporate Units.................................................................................9
Section 5.1. Initial Deposit of Debentures..........................................................9
Section 5.2. Establishment of Treasury Units........................................................9
Section 5.3. Reestablishment of Corporate Units....................................................10
Section 5.4. Termination Event.....................................................................11
Section 5.5. Cash Settlement.......................................................................12
Section 5.6. [Intentionally omitted]...............................................................13
i
3
Section 5.7. Application of Proceeds Settlement....................................................13
ARTICLE VI-- Voting Rights - Pledged Debentures..................................................................14
ARTICLE VII-- Rights and Remedies; Distribution of the Debentures................................................15
Section 7.1. Rights and Remedies of the Collateral Agent...........................................15
Section 7.2. Substitutions.........................................................................16
ARTICLE VIII-- Representations and Warranties; Covenants.........................................................16
Section 8.1. Representations and Warranties........................................................16
Section 8.2. Covenants.............................................................................17
ARTICLE IX-- The Collateral Agent and the Securities Intermediary................................................17
Section 9.1. Appointment, Powers and Immunities....................................................17
Section 9.2. Instructions of the Company...........................................................18
Section 9.3. Reliance by Collateral Agent and Securities Intermediary..............................18
Section 9.4. Rights in Other Capacities............................................................18
Section 9.5. Non-Reliance on Collateral Agent and Securities Intermediary..........................19
Section 9.6. Compensation and Indemnity............................................................19
Section 9.7. Failure to Act........................................................................19
Section 9.8. Resignation of Collateral Agent and Securities Intermediary...........................20
Section 9.9. Right to Appoint Agent or Advisor.....................................................21
Section 9.10. Survival..............................................................................21
Section 9.11. Exculpation...........................................................................21
ARTICLE X-- Amendment............................................................................................22
Section 10.1. Amendment Without Consent of Holders..................................................22
Section 10.2. Amendment with Consent of Holders.....................................................22
Section 10.3. Execution of Amendments...............................................................23
Section 10.4. Effect of Amendments..................................................................23
Section 10.5. Reference to Amendments...............................................................23
ARTICLE XI-- Miscellaneous.......................................................................................24
Section 11.1. No Waiver.............................................................................24
Section 11.2. Governing Law.........................................................................24
Section 11.3. Notices...............................................................................24
Section 11.4. Successors and Assigns................................................................25
Section 11.5. Counterparts..........................................................................25
Section 11.6. Severability..........................................................................25
Section 11.7. Expenses, etc.........................................................................25
Section 11.8. Security Interest Absolute............................................................25
ii
4
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury Unit)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury Unit)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of Corporate Unit)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of Corporate Unit)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary to the
Purchase Contract Agent.
iii
5
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of [______________], 200_ among New NiSource
Inc., a Delaware corporation (the "COMPANY"), Bank One, National Association, a
national banking association, not individually but solely as collateral agent
(in such capacity, together with its successors in such capacity, the
"COLLATERAL AGENT"), Bank One, National Association, a national banking
association, not individually but solely in its capacity as a securities
intermediary with respect to the Collateral Account (in such capacity, together
with its successors in such capacity, the "SECURITIES INTERMEDIARY"), and The
Chase Manhattan Bank, a ____________ banking corporation, not individually but
solely as purchase contract agent and as attorney-in-fact of the Holders from
time to time of the Units (in such capacity, together with its successors in
such capacity, the "PURCHASE CONTRACT AGENT") under the Purchase Contract
Agreement.
R E C I T A L S
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement dated as of the date of this Agreement (as modified and
supplemented and in effect from time to time, the "PURCHASE CONTRACT
AGREEMENT"), pursuant to which there are being issued up to ______________ Stock
Appreciation Income Linked Securities_ (the "SAILS(SM)" or "UNITS").(1)/
Each Corporate Unit, at issuance, consists of a unit comprised of (a) one
stock purchase contract (the "PURCHASE CONTRACT") under which the Holder will
purchase from the Company on ________________, 200_,(2)/ for an amount equal to
[$2.60] (the "STATED AMOUNT"), a number of shares of Common Stock equal to the
Settlement Rate, and (b) beneficial ownership of a Debenture issued by the
Company under the Indenture, having an aggregate principal amount at maturity
equal to the Stated Amount and maturing on ______________, 200_.(3)/
Pursuant to the terms of the Purchase Contract Agreement and the Purchase
Contracts, the Holders of the Units have irrevocably authorized the Purchase
Contract Agent, as attorney-in-fact of such Holders, among other things, to
execute and deliver this Agreement on behalf of such Holders and to grant the
pledge provided in this Agreement of the Collateral Account to secure the
Obligations.
--------
(1)/ "Stock Appreciation Income Linked Securities(SM)" and "SAILS(SM)" are
service marks of Credit Suisse First Boston Corporation.
(2)/ The date that is four years after the Effective Time.
(3)/ The date that is six years after the Effective Time.
6
Accordingly, the Company, the Collateral Agent, the Securities Intermediary
and the Purchase Contract Agent, on its own behalf and as attorney-in-fact of
the Holders from time to time of the Units, agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATIONS
SECTION 1.1. DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Article,
Section, Exhibit or other subdivision;
(c) the following terms which are defined in the Code shall have the
meanings set forth therein: "certificated security," "control," "financial
asset," "entitlement order," "securities account" and "security entitlement";
(d) the following terms have the meanings assigned to them in the Purchase
Contract Agreement: (1) Act, (2) Agent, (3) Board Resolution, (4) Cash
Settlement, (5) Certificate, (6) Common Stock, (7) Corporate Unit, (8)
Debentures, (9) Effective Time, (10) Holders, (11) Indenture, (12) Opinion of
Counsel, (13) Outstanding Units, (14) Unit, (15) Purchase Contract, (16)
Purchase Contract Settlement Date, (17) Purchase Price, (18) Remarketing Agent,
(19) Remarketing Agreement, (20) Settlement Rate, (21) Treasury Security, (22)
Termination Event, and (23) Treasury Unit; and
(e) the following terms have the meanings given to them in this Section
1(e):
"AGREEMENT" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"BANKRUPTCY CODE" means Title 11 of the United States Code, or any other
law of the United States that from time to time provides a uniform system of
bankruptcy laws.
"BUSINESS DAY" means any day other than (i) a Saturday or Sunday or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order
2
7
to remain closed, or (ii) a day on which the principal office of the Indenture
Trustee is closed for business.
"CASH" means any coin or currency of the United States as at the time shall
be legal tender for payment of public and private debts.
"CODE" means the Uniform Commercial Code as in effect in the State of New
York from time to time.
"COLLATERAL ACCOUNT" means the collective reference to (1) Securities
Account No. _________ entitled "Bank One, National Association, as Collateral
Agent, Securities Account New NiSource Inc." maintained by the Securities
Intermediary for the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders, (2) all investment property and other
financial assets from time to time credited to the Collateral Account,
including, without limitation, (A) the Debentures and security entitlements
relating to them which are a component of the Corporate Units from time to time,
(B) any Treasury Securities and security entitlements relating to them delivered
from time to time upon establishment of Treasury Units in accordance with
Section 5.2 of this Agreement and (C) payments made by Holders pursuant to
Section 5.5 of this Agreement (collectively, the "COLLATERAL"), (3) all Proceeds
of any of the foregoing (whether such Proceeds arise before or after the
commencement of any proceeding under any applicable bankruptcy, insolvency or
other similar law, by or against the pledgor or with respect to the pledgor),
and (4) all powers and rights now owned or subsequently acquired under or with
respect to the Collateral Account.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such, after which "Company"
shall mean such successor.
"INDENTURE TRUSTEE" means The Chase Manhattan Bank, as trustee under the
Indenture until a successor is appointed, after which "Indenture Trustee" means
such successor trustee.
"OBLIGATIONS" means, with respect to each Holder, the collective reference
to all obligations and liabilities of such Holder under such Holder's Purchase
Contract and this Agreement or any other document made, delivered or given in
connection with such Purchase Contract or this Agreement, in each case whether
on account of principal, interest (including, without limitation, interest
accruing before and after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
such Holder, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Company or the Collateral Agent or the Securities Intermediary that are required
to be paid by the Holder pursuant to the terms of any of the foregoing
agreements).
3
8
"PERMITTED INVESTMENTS" means any one of the following which shall mature
not later than the next succeeding Business Day: (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or directly
and fully guaranteed or insured, by the United States of America or any of its
agencies or instrumentalities (if the full faith and credit of the United States
of America is pledged in support of the timely payment of such indebtedness or
such indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of 365 days or
less of any institution which is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $200.0
million at the time of deposit; (iii) investments with an original maturity of
365 days or less of any Person that is fully and unconditionally guaranteed by a
bank referred to in clause (ii); (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States of America or issued by any of
its agencies and backed as to timely payment by the full faith and credit of the
United States of America; (v) investments in commercial paper, other than
commercial paper issued by the Company or its affiliates, of any corporation
incorporated under the laws of the United States or any State, which commercial
paper has a rating at the time of purchase at least equal to "A-1" by Standard &
Poor's Ratings Services ("S&P") or at least equal to "P-1" by Xxxxx'x Investors
Service, Inc. ("MOODY'S"); and (vi) investments in money market funds registered
under the Investment Company Act of 1940, as amended, rated in the highest
applicable rating category by S&P or Moody's.
"PERSON" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"PLEDGE" means the lien and security interest created by this Agreement.
"PLEDGED DEBENTURES" means the Debentures and security entitlements with
respect to them from time to time credited to the Collateral Account and not
then released from the Pledge.
"PLEDGED TREASURY SECURITIES" means Treasury Securities and security
entitlements with respect to them from time to time credited to the Collateral
Account and not then released from the Pledge.
"PROCEEDS" has the meaning ascribed to such term in the Code and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in ss. 8-102(a)(9) of the Code) and other property
received, receivable or otherwise distributed upon the sale, exchange,
collection or disposition of any financial assets from time to time held in the
Collateral Account.
"PURCHASE CONTRACT AGENT" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
4
9
"TRADES" means the Treasury/Reserve Automated Debt Entry System maintained
by the Federal Reserve Bank of New York pursuant to the TRADES Regulations.
"TRADES REGULATIONS" means the regulations of the United States Department
of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time.
Unless otherwise defined in this Agreement, all terms defined in the TRADES
Regulations are used in this Agreement as defined in the TRADES Regulations.
"TRANSFER" means:
(i) in the case of certificated securities in registered form,
delivery as provided in Section 8-301(a) of the Code, indorsed to the
transferee or in blank by an effective indorsement;
(ii) in the case of Treasury Securities, registration of the transferee as
the owner of such Treasury Securities on TRADES; and
(iii) in the case of security entitlements, including, without limitation,
security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security
entitlement has been credited to the transferee's securities account.
"VALUE" with respect to any item of Collateral on any date means, as to (i)
Cash, its face amount, and (ii) Treasury Securities or Debentures, their
aggregate principal amount at maturity.
ARTICLE II
PLEDGE
SECTION 2.1. PLEDGE. Each Holder, acting through the Purchase Contract
Agent as such Holder's attorney-in-fact, pledges and grants to the Collateral
Agent, as agent of and for the benefit of the Company, a continuing first
priority security interest in and to, and a lien upon and right of set off
against, all of such Holder's right, title and interest in and to the Collateral
Account to secure the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of the Obligations.
The Collateral Agent shall have all of the rights, remedies and recourses with
respect to the Collateral afforded a secured party by the Code, in addition to,
and not in limitation of, the other rights, remedies and recourses afforded to
the Collateral Agent by this Agreement.
5
10
SECTION 2.2. CONTROL; FINANCING STATEMENT.
(a) The Collateral Agent shall have control of the Collateral Account
pursuant to the provisions of Article 4 of this Agreement.
(b) On the date of initial issuance of the Units, the Purchase Contract
Agent shall deliver to the Collateral Agent a financing statement prepared by
the Company for filing in the Office of the Secretary of State of the State of
New York, signed by the Purchase Contract Agent, as attorney-in-fact for the
Holders, as Debtors, and describing the Collateral.
SECTION 2.3. TERMINATION. This Agreement and the Pledge shall terminate
upon the satisfaction of each Holder's Obligations. Upon termination, the
Securities Intermediary shall Transfer the Collateral to the Purchase Contract
Agent for distribution to the Holders and the Company in accordance with their
respective interests, free and clear of any lien, pledge or security interest
created by this Agreement.
ARTICLE III
DISTRIBUTIONS ON PLEDGED COLLATERAL
SECTION 3.1. INCOME DISTRIBUTIONS. All income distributions received by
the Securities Intermediary on account of Permitted Investments from time to
time held in the Collateral Account shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders as provided in the
Purchase Contracts.
SECTION 3.2. PRINCIPAL PAYMENTS FOLLOWING TERMINATION EVENT. All payments
received by the Securities Intermediary following a Termination Event of (1) the
principal amount of Pledged Debentures or securities entitlements to them, or
(2) the principal amount of Pledged Treasury Securities or securities
entitlements to them, shall be distributed to the Purchase Contract Agent for
the benefit of the Holders for distribution to such Holders in accordance with
their respective interests.
SECTION 3.3. PRINCIPAL PAYMENTS PRIOR TO OR ON PURCHASE CONTRACT
SETTLEMENT DATE.
(a) Except as provided in Section 3.3(b), if no Termination Event shall
have occurred, all payments received by the Securities Intermediary (if any) of
(1) the principal amount with respect to the Pledged Debentures or security
entitlements to them or (2) the principal amount of Pledged Treasury Securities
or security entitlements to them shall be held and invested in Permitted
Investments until the Purchase Contract Settlement Date and on the Purchase
Contract Settlement Date distributed to the Company as provided in Section 5.7
of this Agreement. Any balance
6
11
remaining in the Collateral Account shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (1) the
principal amount of Debentures or security entitlements to them or (2) the
principal amount of Treasury Securities or security entitlements to them that in
each case have been released from the Pledge shall be distributed to the
Purchase Contract Agent for the benefit of the Holders to be distributed to such
Holders in accordance with their respective interests.
SECTION 3.4. PAYMENTS TO PURCHASE CONTRACT AGENT. Payments to the
Purchase Contract Agent pursuant to this Agreement shall be made to the account
designated by the Purchase Contract Agent for such purpose not later than 12:00
p.m., New York City time, on the Business Day such payment is received by the
Securities Intermediary; provided, that if such payment is received on a day
that is not a Business Day or after 12:30 p.m., New York City time, on a
Business Day, then such payment shall be made no later than 10:30 a.m., New York
City time, on the next succeeding Business Day.
SECTION 3.5. ASSETS NOT PROPERLY RELEASED. If the Purchase Contract Agent
or any Holder shall receive any principal payments on account of financial
assets credited to the Collateral Account and not released from the Collateral
Account in accordance with this Agreement, the Purchase Contract Agent or such
Holder shall hold the same as trustee of an express trust for the benefit of the
Company and, upon receipt of an Officers' Certificate (as defined in the
Purchase Contract Agreement) of the Company so directing, shall promptly deliver
the same to the Securities Intermediary for credit to the Collateral Account or
to the Company for application to the Obligations of the Holders under the
related Purchase Contracts, and the Purchase Contract Agent and Holders shall
acquire no right, title or interest in any such payments of principal so
received.
ARTICLE IV
CONTROL
SECTION 4.1. ESTABLISHMENT OF COLLATERAL ACCOUNT. The Securities
Intermediary confirms that (a) the Securities Intermediary has established the
Collateral Account, (b) the Collateral Account is a securities account, (c)
subject to the terms of this Agreement, the Securities Intermediary shall treat
the Purchase Contract Agent as entitled to exercise the rights that comprise any
financial asset credited to the Collateral Account, (d) all property delivered
to the Securities Intermediary pursuant to this Agreement or the Purchase
Contract Agreement or the Indenture will be credited promptly to the Collateral
Account, and (e) all securities or other property underlying any financial
assets credited to the Collateral Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary, or indorsed in
blank or credited to another securities account maintained in the name of the
Securities Intermediary, and in no case will any
7
12
financial asset credited to the Collateral Account be registered in the name of
the Purchase Contract Agent or any Holder, payable to the order of the Purchase
Contract Agent or any Holder, or specially indorsed to the Purchase Contract
Agent or any Holder.
SECTION 4.2. TREATMENT AS FINANCIAL ASSETS. Each item of property (whether
investment property, financial asset, security, instrument or cash) credited to
the Collateral Account shall be treated as a financial asset.
SECTION 4.3. SOLE CONTROL BY COLLATERAL AGENT. Except as provided in
Article 6 of this Agreement, at all times prior to the termination of the
Pledge, the Collateral Agent shall have sole control of the Collateral Account,
and the Securities Intermediary shall take instructions and directions with
respect to the Collateral Account solely from the Collateral Agent. If at any
time the Securities Intermediary shall receive an entitlement order issued by
the Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent, any Holder or any other Person. Until termination
of the Pledge, the Securities Intermediary will not comply with any entitlement
orders issued by the Purchase Contract Agent or any Holder.
SECTION 4.4. SECURITIES INTERMEDIARY'S LOCATION. The Collateral Account
and the rights and obligations of the Securities Intermediary, the Collateral
Agent, the Purchase Contract Agent and the Holders with respect to it shall be
governed by the laws of the State of New York. Regardless of any provision in
any other agreement, for purposes of the Code, New York shall be deemed to be
the Securities Intermediary's location, and the Collateral Account (as well as
the securities entitlements related to it) shall be governed by the laws of the
State of New York.
SECTION 4.5. NO OTHER CLAIMS. Except for the claims and interest of the
Collateral Agent and of the Purchase Contract Agent and the Holders in the
Collateral Account, the Securities Intermediary does not know of any claim to,
or interest in, the Collateral Account or in any financial asset credited to it.
If any person asserts any lien, encumbrance or adverse claim (including any
writ, garnishment, judgment, warrant of attachment, execution or similar
process) against the Collateral Account or in any financial asset carried in it,
the Securities Intermediary will promptly notify the Collateral Agent and the
Purchase Contract Agent.
SECTION 4.6. INVESTMENT AND RELEASE. All proceeds of financial assets from
time to time deposited in the Collateral Account shall be invested and
reinvested as provided in this Agreement. At all times prior to termination of
the Pledge, no property shall be released from the Collateral Account except in
accordance with this Agreement or upon written instructions of the Collateral
Agent.
SECTION 4.7. STATEMENTS AND CONFIRMATIONS. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the
8
13
Collateral Account and any financial assets credited to it simultaneously to the
Purchase Contract Agent and the Collateral Agent at their respective addresses
for notices under this Agreement.
SECTION 4.8. TAX ALLOCATIONS. All items of income, gain, expense and loss
recognized in the Collateral Account shall be reported to the Internal Revenue
Service and all state and local taxing authorities under the names and taxpayer
identification numbers of the Holders which are the beneficial owners of the
Collateral Account.
SECTION 4.9. NO OTHER AGREEMENTS. The Securities Intermediary has not
entered into and prior to the termination of the Pledge will not enter into any
agreement with any other Person relating to the Collateral Account or any
financial assets credited to it, including, without limitation, any agreement to
comply with entitlement orders of any Person other than the Collateral Agent.
SECTION 4.10. POWERS COUPLED WITH AN INTEREST. The rights and powers
granted in this Article 4 to the Collateral Agent have been granted in order to
perfect its security interests in the Collateral Account, are powers coupled
with an interest and will be affected neither by the bankruptcy of the Purchase
Contract Agent or any Holder nor by the lapse of time. The obligations of the
Securities Intermediary under this Article 4 shall continue in effect until the
termination of the Pledge.
ARTICLE V
INITIAL DEPOSIT; ESTABLISHMENT OF TREASURY UNITS
AND REESTABLISHMENT OF CORPORATE UNITS
SECTION 5.1. INITIAL DEPOSIT OF DEBENTURES. Prior to or concurrently with
the execution and delivery of this Agreement, the Purchase Contract Agent, on
behalf of the initial Holders of the Corporate Units, shall Transfer to the
Securities Intermediary, for credit to the Collateral Account, the Debentures or
security entitlements relating to such Debentures, and the Securities
Intermediary shall indicate by book entry that a securities entitlement to such
Debentures has been credited to the Collateral Account.
SECTION 5.2. ESTABLISHMENT OF TREASURY UNITS.
(a) At any time on or prior to the seventh Business Day immediately
preceding the Purchase Contract Settlement Date, a Holder of Corporate Units
shall have the right to establish or reestablish Treasury Units by substitution
of Treasury Securities or security entitlements to them for the Debentures
comprising a part of such Holder's Corporate Units in integral multiples of
5,000 Corporate Units by:
9
14
(1) Transferring to the Securities Intermediary for credit to the
Collateral Account Treasury Securities or security entitlements to them having a
Value equal to the aggregate principal amount at maturity of the Debentures to
be released, accompanied by a notice, substantially in the form of Exhibit C to
the Purchase Contract Agreement, at which time the Purchase Contract Agent shall
deliver to the Collateral Agent a notice, substantially in the form of EXHIBIT A
to this Agreement, (A) stating that such Holder has Transferred Treasury
Securities or security entitlements to them to the Securities Intermediary for
credit to the Collateral Account, (B) stating the Value of the Treasury
Securities or security entitlements to them Transferred by such Holder, and (C)
requesting that the Collateral Agent release from the Pledge the Pledged
Debentures that are a component of such Corporate Units; and
(2) delivering the related Corporate Units to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Treasury Securities or
security entitlements to them have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice, substantially in the form of EXHIBIT B to this
Agreement, to release such Pledged Debentures from the Pledge by Transfer to the
Purchase Contract Agent for distribution to such Holder, free and clear of any
lien, pledge or security interest created by this Agreement.
(b) Upon credit to the Collateral Account of Treasury Securities or
security entitlements to them delivered by a Holder of Corporate Units and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release the Pledged Debentures and shall promptly transfer
the same to the Purchase Contract Agent for distribution to such Holder, free
and clear of any lien, pledge or security interest created by this Agreement.
SECTION 5.3. REESTABLISHMENT OF CORPORATE UNITS.
(a) At any time on or prior to the seventh Business Day immediately
preceding the Purchase Contract Settlement Date, a Holder of Treasury Units
shall have the right to reestablish Corporate Units by substitution of
Debentures or security entitlements to them for Pledged Treasury Securities in
integral multiples of [13] Treasury Units by:
(1) Transferring to the Securities Intermediary for credit to the
Collateral Account Debentures or security entitlements to them having a
principal amount at maturity equal to the Value of the Pledged Treasury
Securities to be released, accompanied by a notice, substantially in the form of
Exhibit C to the Purchase Contract Agreement, at which time the Purchase
Contract Agent shall deliver to the Collateral Agent a notice, substantially in
the form of EXHIBIT C to this Agreement, stating that such Holder has
Transferred Debentures or security entitlements to them to the Securities
Intermediary for credit to the Collateral Account and requesting that the
Collateral Agent release from the Pledge the Pledged Treasury Securities related
to such Treasury Units; and
10
15
(2) delivering the related Treasury Units to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Debentures or security
entitlements to them have been credited to the Collateral Account as described
in such notice, the Collateral Agent shall instruct the Security Intermediary by
a notice in substantially the form of EXHIBIT D to this Agreement to release
such Pledged Treasury Securities from the Pledge by Transfer to the Purchase
Contract Agent for distribution to such Holder.
(b) Upon credit to the Collateral Account of Debentures or security
entitlements to them delivered by a Holder of Treasury Units and receipt of the
related instruction from the Collateral Agent, the Securities Intermediary shall
release the applicable Pledged Treasury Securities and shall promptly Transfer
the same to the Purchase Contract Agent for distribution to such Holder, free
and clear of any lien, pledge or security interest created by this Agreement.
SECTION 5.4. TERMINATION EVENT.
(a) Upon receipt by the Collateral Agent of written notice from the Company
or the Purchase Contract Agent that a Termination Event has occurred, the
Collateral Agent shall release all Collateral from the Pledge and shall promptly
Transfer:
(1) any Pledged Debentures, and
(2) any Pledged Treasury Securities
to the Purchase Contract Agent for the benefit of the Holders, for distribution
to such Holders in accordance with their respective interests, free and clear of
any lien, pledge or security interest or other interest created by this
Agreement.
(b) If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Debentures and Pledged Treasury Securities as provided by this Section 5.4, the
Purchase Contract Agent shall:
(1) use its best efforts to obtain an opinion of a nationally
recognized law firm reasonably acceptable to the Collateral Agent to the
effect that, as a result of the Company's being the debtor in such a
bankruptcy case, the Collateral Agent will not be prohibited from releasing
or Transferring the Collateral as provided in this Section 5.4, and shall
deliver such opinion to the Collateral Agent within ten days after the
occurrence of such Termination Event, and if (A) the Purchase Contract
Agent shall be unable to obtain such opinion within ten days after the
occurrence of such Termination Event or (B) the Collateral Agent shall
continue, after delivery of such opinion, to refuse to effectuate the
release and Transfer of all the Pledged Debentures, all the Pledged
Treasury Securities or the Proceeds
11
16
of any of the foregoing, as the case may be, as provided in this Section
5.4, then the Purchase Contract Agent shall within fifteen days after the
occurrence of such Termination Event commence an action or proceeding in
the court having jurisdiction of the Company's case under the Bankruptcy
Code seeking an order requiring the Collateral Agent to effectuate the
release and transfer of all the Pledged Debentures, all the Pledged
Treasury Securities, and the Proceeds of any of the foregoing, as the case
may be, as provided by this Section 5.4; or
(2) commence an action or proceeding like that described in Section
5.4(b)(1)(B) within ten days after the occurrence of such Termination
Event.
SECTION 5.5. CASH SETTLEMENT.
(a) Upon receipt by the Collateral Agent of (1) a notice from the Purchase
Contract Agent promptly after the receipt by the Purchase Contract Agent of a
notice that a Holder of a Corporate Unit or Treasury Unit has elected, in
accordance with the procedures specified in Section 5.4(a)(i) or (d)(i) of the
Purchase Contract Agreement, respectively, to settle its Purchase Contract with
cash and (2) payment by such Holder by deposit in the Collateral Account on or
prior to 11:00 a.m., New York City time, on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date of the Purchase Price in lawful
money of the United States by certified or cashier's check or wire transfer of
immediately available funds payable to or upon the order of the Securities
Intermediary, then the Collateral Agent shall (i) instruct the Securities
Intermediary promptly to invest any such Cash in Permitted Investments and
(ii) release from the Pledge (1) Pledged Debentures in the case of a Holder of
Corporate Units, or (2) Pledged Treasury Securities in the case of a Holder of
Treasury Units, in each case with a principal amount at maturity equal to the
product of (x) the Stated Amount times (y) the number of such Purchase Contracts
as to which such Holders have elected to effect a cash settlement pursuant to
this Section 5.5(a) and shall instruct the Securities Intermediary to Transfer
all such Pledged Debentures or Pledged Treasury Securities, as the case may be,
to the Purchase Contract Agent for the benefit of such Holders, in each case
free and clear of the Pledge, for distribution to such Holders in accordance
with their respective interests. Upon receipt of the proceeds upon the maturity
of the Permitted Investments on the Purchase Contract Settlement Date, the
Collateral Agent shall (A) instruct the Securities Intermediary to pay the
portion of such proceeds and deliver any certified or cashier's checks received,
in an aggregate amount equal to the Purchase Price, to the Company on the
Purchase Contract Settlement Date, and (B) instruct the Securities Intermediary
to release any amounts in respect of the interest earned from such Permitted
Investments to the Purchase Contract Agent for distribution to the relevant
Holders in accordance with their respective interests.
(b) If a Holder of a Corporate Unit notifies the Purchase Contract Agent as
provided in Section 5.4(a)(i) of the Purchase Contract Agreement of its
intention to pay the Purchase Price in cash, but fails to make such payment as
required by Section 5.4(a)(ii) of the Purchase Contract Agreement, such Holder
shall be deemed to have consented to the disposition of the
12
17
Pledged Debentures of such Holder in accordance with Section 5.4(a)(iii) of the
Purchase Contract Agreement.
(c) If a Holder of a Treasury Unit notifies the Purchase Contract Agent as
provided in Section 5.4(d)(i) of the Purchase Contract Agreement of its
intention to pay the Purchase Price in cash, but fails to make such payment as
required by Section 5.4(d)(ii) of the Purchase Contract Agreement, such Holder
shall be deemed to have elected to pay the Purchase Price in accordance with
Section 5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m., New York City time, on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date, the Securities
Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of EXHIBIT E to this Agreement, stating (i) the amount
of cash that it has received with respect to the Cash Settlement of Corporate
Units and (ii) the amount of cash that it has received with respect to the Cash
Settlement of Treasury Units.
SECTION 5.6. [INTENTIONALLY OMITTED].
SECTION 5.7. APPLICATION OF PROCEEDS SETTLEMENT.
(a)If a Holder of Corporate Units has not elected to make an effective
Cash Settlement by notifying the Purchase Contract Agent in the manner provided
for in Section 5.4(a)(i) in the Purchase Contract Agreement, or has given such
notice but failed to deliver the required cash prior to 11:00 A.M., New York
City time, on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, such Holder shall be deemed to have elected to pay for the
shares of Common Stock to be issued under such Purchase Contract(s) from the
Proceeds of the related Pledged Debentures. In such event, the Collateral Agent
shall instruct the Securities Intermediary to Transfer the related Pledged
Debentures to the Remarketing Agent for remarketing. Upon receiving such Pledged
Debentures, the Remarketing Agent, pursuant to the terms of the Remarketing
Agreement, will use commercially reasonable efforts to remarket such Pledged
Debentures on such date at a price of 100.50% of the aggregate principal amount
of such Pledged Debentures. From the proceeds of the Remarketing, the
Remarketing Agent will retain an amount (not exceeding 0.50% of the aggregate
principal amount of such Pledged Debentures) equal to its remarketing fee and
will deposit the remaining amount of the Proceeds of such remarketing in the
Collateral Account. On the Purchase Contract Settlement Date, the Collateral
Agent shall instruct the Securities Intermediary to apply a portion of the
Proceeds from such remarketing equal to the aggregate principal amount of such
Pledged Debentures to satisfy in full the obligations of such Holders of
Corporate Units to pay the Purchase Price to purchase the Common Stock under the
related Purchase Contracts. The balance of the Proceeds from such remarketing
(if any) shall be transferred to the Company. If the Remarketing Agent advises
the Collateral Agent in writing that there has been a Failed Remarketing, the
Collateral Agent, for the benefit of the Company shall, at the written direction
of the Company,
13
18
dispose of the Pledged Debentures in accordance with applicable law and satisfy
in full, from such disposition, such Holders' obligations to pay the Purchase
Price for the Common Stock.
(b) If a Holder of Treasury Units has not elected to make an effective cash
settlement by notifying the Purchase Contract Agent in the manner provided for
in Section 5.4(d)(i) of the Purchase Contract Agreement, or has given such
notice but failed to make such payment in the manner required by Section
5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be deemed to
have elected to pay for the shares of Common Stock to be issued under such
Purchase Contract(s) from the Proceeds of the related Pledged Treasury
Securities. Upon maturity of the Pledged Treasury Securities, the Securities
Intermediary, at the written direction of the Collateral Agent, shall invest the
Cash Proceeds of the maturing Pledged Treasury Securities in Permitted
Investments. Without receiving any instruction from any such Holder of Treasury
Units, the Collateral Agent shall apply the Proceeds of the related Pledged
Treasury Securities to the settlement of such Purchase Contracts on the Purchase
Contract Settlement Date. If the sum of the Proceeds from the related Pledged
Treasury Securities and the investment earnings from the investment in Permitted
Investments is in excess of the aggregate Purchase Price of the Purchase
Contracts being settled, the Collateral Agent shall instruct the Securities
Intermediary to distribute such excess, when received, to the Purchase Contract
Agent for the benefit of such Holders for distribution to such Holders in
accordance with their respective interests.
ARTICLE VI
VOTING RIGHTS - PLEDGED DEBENTURES
The Purchase Contract Agent may exercise, or refrain from exercising, any
and all voting and other consensual rights pertaining to the Pledged Debentures
or any part of them in accordance with the terms of the Purchase Contract
Agreement; provided, that the Purchase Contract Agent shall not exercise or, as
the case may be, shall not refrain from exercising such right if, in the
judgment of the Purchase Contract Agent, such action or inaction would impair or
otherwise have a material and adverse effect on the value of all or any of the
Pledged Debentures; and provided, further, that the Purchase Contract Agent
shall give the Company and the Collateral Agent at least five days' prior
written notice of the manner in which it intends to exercise, or its reasons for
refraining from exercising, any such right. Upon receipt of any notices and
other communications in respect of any Pledged Debentures, including notice of
any meeting at which holders of the Debentures are entitled to vote or
solicitation of consents, waivers or proxies of holders of the Debentures, the
Collateral Agent shall use reasonable efforts to send promptly to the Purchase
Contract Agent such notice or communication, and as soon as reasonably
practicable after receipt of a written request from the Purchase Contract Agent,
shall execute and deliver to the Purchase Contract Agent such proxies and other
instruments in respect of such Pledged Debentures (in form and substance
satisfactory to the Collateral Agent) as are prepared by the Purchase Contract
Agent with respect to the Pledged Debentures.
14
19
ARTICLE VII
RIGHTS AND REMEDIES;
DISTRIBUTION OF THE DEBENTURES
SECTION 7.1. RIGHTS AND REMEDIES OF THE COLLATERAL AGENT.
(a) In addition to the rights and remedies specified in Section 5.4 or
otherwise available at law or in equity, after an event of default (as specified
in Section 7.1(b) below), the Collateral Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the Code
(whether or not the Code is in effect in the jurisdiction where the rights and
remedies are asserted) and the TRADES Regulations and such additional rights and
remedies to which a secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies under this Agreement may be asserted.
Without limiting the generality of the foregoing, such remedies may include, to
the extent permitted by applicable law, (i) retention of the Pledged Debentures
in full satisfaction of the Holders' obligations under the Purchase Contracts or
(ii) sale of the Pledged Debentures in one or more public or private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, if the Collateral Agent is unable to make
payments to the Company on account of principal payments of any Pledged Treasury
Securities as provided in Article 3, in satisfaction of the Obligations of the
Holder of the Units of which such Pledged Treasury Securities is a part under
the related Purchase Contracts, the inability to make such payments shall
constitute an event of default under this Agreement and the Collateral Agent
shall have and may exercise, with reference to such Pledged Treasury Securities
and such Obligations of such Holder, any and all of the rights and remedies
available to a secured party under the Code and the TRADES Regulations after
default by a debtor, and as otherwise granted in this Agreement or under any
other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is irrevocably
authorized to receive and collect all payments of (i) the principal amount of
the Pledged Treasury Securities, and (ii) the principal amount of the Pledged
Debentures, subject, in each case, to the provisions of Article 3, and as
otherwise granted in this Agreement.
(d) The Purchase Contract Agent and each Holder of Units, in the event such
Holder becomes the Holder of a Treasury Unit, agrees that, from time to time,
upon the written request of the Collateral Agent, the Purchase Contract Agent or
such Holder shall execute and deliver such further documents and do such other
acts and things as the Collateral Agent may reasonably request in order to
maintain the Pledge, and the perfection and priority of the Pledge, and to
confirm the rights of the Collateral Agent under this Agreement. The Purchase
Contract Agent shall have no liability to any Holder for executing any documents
or taking any such acts requested by the
15
20
Collateral Agent under this Agreement, except for liability for its own
negligent acts, its own negligent failure to act or its own willful misconduct.
SECTION 7.2. SUBSTITUTIONS. Whenever a Holder has the right to substitute
Treasury Securities, Debentures or security entitlements to either of them, as
the case may be, for financial assets held in the Collateral Account, such
substitution shall not constitute a novation of the security interest created by
this Agreement.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES; COVENANTS
SECTION 8.1. REPRESENTATIONS AND WARRANTIES. Each Holder from time to time,
acting through the Purchase Contract Agent as attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), represents and
warrants to the Collateral Agent (with respect to his interest in the
Collateral), which representations and warranties shall be deemed repeated on
each day a Holder Transfers Collateral that:
(a) such Holder has the power to grant a security interest in and lien on
the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral and, in the
case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right
to Transfer, the Collateral it Transfers to the Securities
Intermediary for credit to the Collateral Account, free and clear of
any security interest, lien, encumbrance, call, liability to pay money
or other restriction other than the security interest and lien granted
under Article 2;
(c) upon the Transfer of the Collateral to the Securities Intermediary for
credit to the Collateral Account, the Collateral Agent, for the
benefit of the Company, will have a valid and perfected first priority
security interest in the Collateral (assuming that any central
clearing operation or any securities intermediary or other entity not
within the control of the Holder involved in the Transfer of the
Collateral, including the Collateral Agent and the Securities
Intermediary, gives the notices and takes the action required of it
under this Agreement and under applicable law for perfection of that
interest and assuming the establishment and exercise of control
pursuant to Article 4); and
16
21
(d) the execution and performance by the Holder of its obligations under
this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the
security interest and lien granted under Article 2 or violate any
provision of any existing law or regulation applicable to it or of any
mortgage, charge, pledge, indenture, contract or undertaking to which
it is a party or which is binding on it or any of its assets.
SECTION 8.2. COVENANTS. The Holders from time to time, acting through the
Purchase Contract Agent as their attorney-in-fact (it being understood that the
Purchase Contract Agent shall not be liable for any covenant made by or on
behalf of a Holder), covenant to the Collateral Agent that for so long as the
Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will create or
purport to create or allow to subsist any mortgage, charge, lien,
pledge or any other security interest over the Collateral or any part
of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will sell or
otherwise dispose (or attempt to dispose) of the Collateral or any
part of it except for the beneficial interest in the Collateral,
subject to the Pledge, transferred in connection with the Transfer of
the Units.
ARTICLE IX
THE COLLATERAL AGENT AND THE SECURITIES INTERMEDIARY
SECTION 9.1. APPOINTMENT, POWERS AND IMMUNITIES. The Collateral Agent shall
act as agent for the Company under this Agreement with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental to such express
powers. The Collateral Agent: (a) shall have no duties or responsibilities
except those expressly set forth in this Agreement and no implied covenants or
obligations shall be inferred from this Agreement against the Collateral Agent,
nor shall the Collateral Agent be bound by the provisions of any agreement by
any party beyond the specific terms of this Agreement; (b) shall not be
responsible for any recitals contained in this Agreement, or in any certificate
or other document referred to or provided for in, or received by it under, this
Agreement, the Units or the Purchase Contract Agreement, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement (other than as against the Collateral Agent), the Units or the
Purchase Contract Agreement or any other document referred to or provided for in
this Agreement or therein or for any failure by the Company or any other Person
(except the Collateral Agent) to perform any of its obligations under this
Agreement or thereunder or for the perfection, priority or, except as expressly
17
22
required by this Agreement, maintenance of any security interest created under
this Agreement; (c) shall not be required to initiate or conduct any litigation
or collection proceedings under this Agreement (except pursuant to directions
furnished under Section 9.2, subject to Section 9.6); (d) shall not be
responsible for any action taken or omitted to be taken by it under this
Agreement or under any other document or instrument referred to or provided for
in this Agreement or in connection with this Agreement or therewith, except for
its own negligence or willful misconduct; and (e) shall not be required to
advise any party as to selling or retaining, or taking or refraining from taking
any action with respect to, any securities or other property deposited under
this Agreement. Subject to the foregoing, during the term of this Agreement, the
Collateral Agent shall take all reasonable action in connection with the
safekeeping and preservation of the Collateral.
No provision of this Agreement shall require the Collateral Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties under this Agreement. In no event shall the
Collateral Agent be liable for any amount in excess of the Value of the
Collateral. Notwithstanding the foregoing, each of the Collateral Agent and the
Securities Intermediary in its individual capacity waives any right of setoff,
bankers lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
SECTION 9.2. INSTRUCTIONS OF THE COMPANY. The Company shall have the right,
by one or more instruments in writing executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for the
realization of any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the taking
or refraining from taking of any action authorized by this Agreement; provided,
that (i) such direction shall not conflict with the provisions of any law or of
this Agreement and (ii) the Collateral Agent shall be adequately indemnified as
provided in this Agreement. Nothing in this Section 9.2 shall impair the right
of the Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such direction.
SECTION 9.3. RELIANCE BY COLLATERAL AGENT AND SECURITIES INTERMEDIARY. Each
of the Securities Intermediary and the Collateral Agent shall be entitled to
rely upon any certification, order, judgment, opinion, notice or other
communication (including, without limitation, any of them made by telephone,
telecopy, telex or facsimile) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated therein)
and upon advice and statements of legal counsel and other experts selected by
the Collateral Agent and the Securities Intermediary. As to any matters not
expressly provided for by this Agreement, the Collateral Agent and the
Securities Intermediary shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with instructions
given by the Company in accordance with this Agreement.
SECTION 9.4. RIGHTS IN OTHER CAPACITIES. The Collateral Agent and the
Securities Intermediary and their affiliates may (without having to account to
the Company) accept deposits from, lend money to, make their investments in and
generally engage in any kind of banking, trust or
18
23
other business with the Purchase Contract Agent, any other Person interested in
this Agreement and any Holder of Units (and any of their respective subsidiaries
or affiliates) as if it were not acting as the Collateral Agent, and the
Collateral Agent, the Securities Intermediary and their affiliates may accept
fees and other consideration from the Purchase Contract Agent and any Holder of
Units without having to account for the same to the Company; provided that each
of the Securities Intermediary and the Collateral Agent covenants and agrees
with the Company that it shall not accept, receive or permit there to be created
in favor of itself and shall take no affirmative action to permit there to be
created in favor of any other Person, any security interest, lien or other
encumbrance of any kind in or upon the Collateral other than the lien created by
the Pledge.
SECTION 9.5. NON-RELIANCE ON COLLATERAL AGENT AND SECURITIES INTERMEDIARY.
Neither the Securities Intermediary nor the Collateral Agent shall be required
to keep itself informed as to the performance or observance by the Purchase
Contract Agent or any Holder of Units of this Agreement, the Purchase Contract
Agreement, the Units or any other document referred to or provided for in this
Agreement or therein or to inspect the properties or books of the Purchase
Contract Agent or any Holder of Units. Neither the Collateral Agent nor the
Securities Intermediary shall have any duty or responsibility to provide the
Company with any credit or other information concerning the affairs, financial
condition or business of the Purchase Contract Agent or any Holder of Units (or
any of their respective affiliates) that may come into the possession of the
Collateral Agent or the Securities Intermediary or any of their respective
affiliates.
SECTION 9.6. COMPENSATION AND INDEMNITY. The Company agrees: (i) to pay the
Collateral Agent and the Securities Intermediary from time to time such
compensation as shall be agreed in writing between the Company and the
Collateral Agent or the Securities Intermediary, as the case may be, for all
services rendered by them under this Agreement and (ii) to indemnify the
Collateral Agent and the Securities Intermediary for, and to hold each of them
harmless from and against, any loss, liability or reasonable out-of-pocket
expense incurred without negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or administration of
its powers and duties under this Agreement, including the reasonable
out-of-pocket costs and expenses (including reasonable fees and expenses of
counsel) of defending itself against any claim or liability in connection with
the exercise or performance of such powers and duties.
SECTION 9.7. FAILURE TO ACT. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the parties to this Agreement or any other Person with respect to any
funds or property deposited under this Agreement, the Collateral Agent and the
Securities Intermediary shall be entitled, after prompt notice to the Company
and the Purchase Contract Agent, at its sole option, to refuse to comply with
any and all claims, demands or instructions with respect to such property or
funds so long as such dispute or conflict shall continue, and the Collateral
Agent and the Securities Intermediary shall not be or become liable in any way
to any of the parties for its failure or refusal to comply with such conflicting
claims, demands or instructions. The Collateral Agent and the Securities
Intermediary shall be entitled to refuse to act until either (i) such
conflicting or adverse claims or demands shall have been finally determined by a
19
24
court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to the Collateral Agent or the
Securities Intermediary or (ii) the Collateral Agent or the Securities
Intermediary shall have received security or an indemnity satisfactory to it
sufficient to save it harmless from and against any and all loss, liability or
reasonable out-of-pocket expense which it may incur by reason of its acting. The
Collateral Agent and the Securities Intermediary may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent or the Securities Intermediary may deem necessary.
Notwithstanding anything contained in this Agreement to the contrary, neither
the Collateral Agent nor the Securities Intermediary shall be required to take
any action that is in its opinion contrary to law or to the terms of this
Agreement, or which would in its opinion subject it or any of its officers,
employees or directors to liability.
SECTION 9.8. RESIGNATION OF COLLATERAL AGENT AND SECURITIES INTERMEDIARY.
(a) Subject to the appointment and acceptance of a successor Collateral
Agent as provided below, (i) the Collateral Agent may resign at any time by
giving notice to the Company and the Purchase Contract Agent as attorney-in-fact
for the Holders of Units, (ii) the Collateral Agent may be removed at any time
by the Company, and (iii) if the Collateral Agent fails to perform any of its
material obligations under this Agreement in any material respect for a period
of not less than 20 days after receiving written notice of such failure by the
Purchase Contract Agent and such failure shall be continuing, the Collateral
Agent may be removed by the Purchase Contract Agent. The Purchase Contract Agent
shall promptly notify the Company of any removal of the Collateral Agent
pursuant to clause (iii) of the immediately preceding sentence. Upon any such
resignation or removal, the Company shall have the right to appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so appointed
and shall have accepted such appointment within 30 days after the retiring
Collateral Agent's giving of notice of resignation or such removal, then the
retiring Collateral Agent may petition any court of competent jurisdiction for
the appointment of a successor Collateral Agent. The Collateral Agent shall be a
bank which has an office in New York, New York with a combined capital and
surplus of at least $50,000,000 and shall not be the Purchase Contract Agent or
any of its affiliates. Upon the acceptance of any appointment as Collateral
Agent by a successor Collateral Agent, such successor Collateral Agent shall
immediately succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Collateral Agent, and the retiring Collateral Agent
shall take all appropriate action to transfer any money and property held by it
under this Agreement (including the Collateral) to such successor Collateral
Agent. The retiring Collateral Agent shall, upon such succession, be discharged
from its duties and obligations as Collateral Agent. After any retiring
Collateral Agent's resignation as Collateral Agent, the provisions of this
Article 9 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Collateral Agent.
(b) Subject to the appointment and acceptance of a successor Securities
Intermediary as provided below, (i) the Securities Intermediary may resign at
any time by giving notice to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders of Xxxxx,
00
25
(ii) the Securities Intermediary may be removed at any time by the Company, and
(iii) if the Securities Intermediary fails to perform any of its material
obligations under this Agreement in any material respect for a period of not
less than 20 days after receiving written notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Securities Intermediary
may be removed by the Purchase Contract Agent. The Purchase Contract Agent shall
promptly notify the Company of any removal of the Securities Intermediary
pursuant to clause (iii) of the immediately preceding sentence. Upon any such
resignation or removal, the Company shall have the right to appoint a successor
Securities Intermediary. If no successor Securities Intermediary shall have been
so appointed and shall have accepted such appointment within 30 days after the
retiring Securities Intermediary's giving of notice of resignation or such
removal, then the retiring Securities Intermediary may petition any court of
competent jurisdiction for the appointment of a successor Securities
Intermediary. The Securities Intermediary shall be a bank which has an office in
New York, New York with a combined capital and surplus of at least $50,000,000
and shall not be the Purchase Contract Agent or any of its affiliates. Upon the
acceptance of any appointment as Securities Intermediary by a successor
Securities Intermediary, such successor Securities Intermediary shall
immediately succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Securities Intermediary, and the retiring Securities
Intermediary shall take all appropriate action to transfer any money and
property held by it under this Agreement (including the Collateral) to such
successor Securities Intermediary. The retiring Securities Intermediary shall,
upon such succession, be discharged from its duties and obligations as
Securities Intermediary. After any retiring Securities Intermediary's
resignation as Securities Intermediary, the provisions of this Article 9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Securities Intermediary.
SECTION 9.9. RIGHT TO APPOINT AGENT OR ADVISOR. The Collateral Agent shall
have the right to appoint agents or advisors in connection with any of its
duties under this Agreement, and the Collateral Agent shall not be liable for
any action taken or omitted by, or in reliance upon the advice of, such agents
or advisors selected in good faith. The appointment of agents and advisors
pursuant to this Section 9.9 shall be subject to prior consent of the Company,
which consent shall not be unreasonably withheld.
SECTION 9.10. SURVIVAL. The provisions of this Article 9 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent or the Securities Intermediary.
SECTION 9.11. EXCULPATION. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent or the Securities
Intermediary or their officers, directors, employees or agents be liable under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind, including lost profits, whether or not
the likelihood of such loss or damage was known to the Collateral Agent or the
Securities Intermediary, or any of them, incurred without any act or deed that
is found to be attributable to gross negligence or willful misconduct on the
part of the Collateral Agent or the Securities Intermediary.
21
26
ARTICLE X
AMENDMENT
SECTION 10.1. AMENDMENT WITHOUT CONSENT OF HOLDERS. Without the consent of
any Holders, the Company, the Collateral Agent, the Securities Intermediary and
the Purchase Contract Agent, at any time and from time to time, may amend this
Agreement, in form satisfactory to the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, for any one or more of
the following purposes only:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants and agreements of the
Company;
(2) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power conferred upon the Company in this
Agreement, so long as such covenants or such surrender does not adversely
affect the validity, perfection or priority of the Pledge;
(3) to evidence and provide for the acceptance of appointment by a
successor Collateral Agent, Securities Intermediary or Purchase Contract
Agent; or
(4) to cure any ambiguity (or formal defect), to correct or supplement any
provisions in this Agreement which may be inconsistent with any other such
provisions in this Agreement, or to make any other provisions with respect
to such matters or questions arising under this Agreement, provided such
action shall not adversely affect the interests of the Holders.
SECTION 10.2. AMENDMENT WITH CONSENT OF HOLDERS. With the consent of the
Holders of not less than a majority of the Purchase Contracts at the time
outstanding, by Act of said Holders delivered to the Company, the Purchase
Contract Agent, the Securities Intermediary or the Collateral Agent, as the case
may be, the Company, when duly authorized, the Purchase Contract Agent, the
Securities Intermediary and the Collateral Agent may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Units; provided, that no such
supplemental agreement shall, without the unanimous consent of the Holders of
each Outstanding Unit adversely affected by it,
(1) change the amount or type of Collateral underlying a Unit (except for
the rights of holders of Corporate Units to substitute the Treasury
Securities for the Pledged Debentures, or the rights of Holders of Treasury
Units to substitute Debentures for the Pledged Treasury Securities), impair
the right of the Holder of any Unit to receive
22
27
distributions on the underlying Collateral or otherwise adversely affect the
Holder's rights in or to such Collateral;
(2) otherwise effect any action that would require the consent of the
Holder of each Outstanding Unit affected by such action pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
supplemental to it; or
(3) reduce the percentage of Purchase Contracts the consent of the Holders
of which is required for any such amendment;
provided, that if any amendment or proposal referred to above would adversely
affect only the Corporate Units or only the Treasury Units, then only the
affected class of Holder as of the record date for the Holders entitled to vote
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; and provided further, that the unanimous consent
of the Holders of each outstanding Purchase Contract of such class affected
thereby shall be required to approve any amendment or proposal specified in
clauses (1) - (3) above.
It shall not be necessary for any Act of Holders under this Article to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance of the amendment.
SECTION 10.3. EXECUTION OF AMENDMENTS. In executing any amendment permitted
by this Article, the Collateral Agent, the Securities Intermediary and the
Purchase Contract Agent shall be entitled to receive and (subject to Section 7.1
of the Purchase Contract Agreement with respect to the Purchase Contract Agent)
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent, if any, to the execution and delivery of such
amendment have been satisfied.
SECTION 10.4. EFFECT OF AMENDMENTS. Upon the execution of any amendment
under this Article, this Agreement shall be modified in accordance with the
amendment, and such amendment shall form a part of this Agreement for all
purposes; and every Holder of Certificates previously or subsequently
authenticated, executed on behalf of the Holders and delivered under the
Purchase Contract Agreement shall be bound by the amendment.
SECTION 10.5. REFERENCE TO AMENDMENTS. Certificates authenticated, executed
on behalf of the Holders and delivered after the execution of any amendment
pursuant to this Article may, and shall if required by the Collateral Agent or
the Purchase Contract Agent, bear a notation in form approved by the Purchase
Contract Agent and the Collateral Agent as to any matter provided for in such
amendment. If the Company shall so determine, new Unit Certificates so modified
as to conform, in the opinion of the Collateral Agent, the Purchase Contract
Agent and the Company, to
23
28
any such amendment may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Purchase
Contract Agent in accordance with the Purchase Contract Agreement in exchange
for Outstanding Unit Certificates.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. NO WAIVER. No failure on the part of the Collateral Agent or
any of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Collateral Agent or any of its agents of any right, power or remedy under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies in this Agreement are cumulative and
are not exclusive of any remedies provided by law.
SECTION 11.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Without limiting
the foregoing, the above choice of law is expressly agreed to by the Company,
the Securities Intermediary, the Collateral Agent and the Holders from time to
time acting through the Purchase Contract Agent, as their attorney-in-fact, in
connection with the establishment and maintenance of the Collateral Account. The
Company, the Collateral Agent, the Securities Intermediary and the Holders from
time to time of the Units, acting through the Purchase Contract Agent as their
attorney-in-fact, submit to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York state
court sitting in New York City for the purposes of all legal proceedings arising
out of or relating to this Agreement or the transactions contemplated by this
Agreement. The Company, the Collateral Agent, the Securities Intermediary and
the Holders from time to time of the Units, acting through the Purchase Contract
Agent as their attorney-in-fact, irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or subsequently
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 11.3. NOTICES. All notices, requests, consents and other
communications provided for in this Agreement (including, without limitation,
any modifications of, or waivers or consents under, this Agreement) shall be
given or made in writing (including, without limitation, by telecopy) delivered
to the intended recipient at the "Address for Notices" specified below its name
on the signature pages or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
24
29
SECTION 11.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent, the Securities Intermediary and the Purchase
Contract Agent, and the Holders from time to time of the Units, by their
acceptance of the same, shall be deemed to have agreed to be bound by the
provisions of this Agreement and to have ratified the agreements of, and the
grant of the Pledge by, the Purchase Contract Agent.
SECTION 11.5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties may execute this Agreement by signing any
such counterpart.
SECTION 11.6. SEVERABILITY. If any provision of this Agreement is invalid
and unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions of this Agreement shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intentions of the parties as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
SECTION 11.7. EXPENSES, ETC. The Company agrees to reimburse the Collateral
Agent and the Securities Intermediary for: (a) all reasonable out-of-pocket
costs and expenses of the Collateral Agent and the Securities Intermediary
(including, without limitation, the reasonable fees and expenses of counsel to
the Collateral Agent and the Securities Intermediary), in connection with (i)
the negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms of
this Agreement; (b) all reasonable costs and expenses of the Collateral Agent
and the Securities Intermediary (including, without limitation, reasonable fees
and expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Units to satisfy
its obligations under the Purchase Contracts forming a part of the Units and
(ii) the enforcement of this Section 11.7; and (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any other
document referred to in this Agreement and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
this Agreement.
SECTION 11.8. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent and security interests under this Agreement, and all obligations of the
Holders from time to time under this Agreement, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of the Purchase
Contracts or the Units or any other agreement or instrument relating to them;
25
30
(b) any change in the time, manner or place of payment of, or any other
term of, or any increase in the amount of, all or any of the obligations of
Holders of the Units under the related Purchase Contracts, or any other
amendment or waiver of any term of, or any consent to any departure from any
requirement of, the Purchase Contract Agreement or any Purchase Contract or
any other agreement or instrument relating to them; or
(c) any other circumstance which might otherwise constitute a defense
available to, or discharge of, a borrower, a guarantor or a pledgor.
26
31
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
------------------------------- ------------------------------------------
New NiSource Inc. The Chase Manhattan Bank, as Purchase
Contract Agent and as attorney-in-fact of the
Holders from time to time of the Units
By: By:
---------------------------- ---------------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
New NiSource Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Adik Attention:
Telecopy: (000) 000-0000 ---------------------------------
Telecopy:
----------------------------------
------------------------------- ------------------------------------------
Bank One, National Association, Bank One, National Association, as Securities
as Collateral Agent Intermediary
By: By:
---------------------------- ---------------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
Attention: Attention:
--------------------- -------------------------------
Telecopy: Telecopy:
--------------------- -------------------------------
27
32
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury Unit)
Bank One, National Association
[Address]
Re: ________ Units of New NiSource Inc. (the "COMPANY")
Please refer to the Pledge Agreement dated as of [______________], 2000
(the "PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, Bank One,
National Association, as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of Units from
time to time. Capitalized terms used but not defined in this certificate shall
have the meaning set forth in the Pledge Agreement.
We notify you in accordance with Section 5.2 of the Pledge Agreement that
the holder of securities named below (the "HOLDER") has elected to substitute
$__________ Value of Treasury Securities or security entitlements to them in
exchange for an equal Value of Pledged Debentures and has delivered to the
undersigned a notice stating that the Holder has Transferred such Treasury
Securities or security entitlements to them to the Securities Intermediary, for
credit to the Collateral Account.
We request that you instruct the Securities Intermediary, upon confirmation
that such Treasury Securities or security entitlements to them have been
credited to the Collateral Account, to release to the undersigned an equal Value
of Pledged Debentures in accordance with Section 5.2 of the Pledge Agreement.
The Chase Manhattan Bank
Date: _______________ By:______________________________
Name:
Title:
A-2
33
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements to them for the Pledged Debentures:
---------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
Address
A-3
34
EXHIBIT B
INSTRUCTION FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury Unit)
Bank One, National Association
[Address]
Re: Units of New NiSource Inc. (the "Company")
Securities Account No. ______________ entitled "Bank One, National
Association, as Collateral Agent, Securities Account (New NiSource
Inc.)" (the "Collateral Account")
Please refer to the Pledge Agreement dated as of [______________], 2000
(the "PLEDGE AGREEMENT"), among the Company, you, as Securities Intermediary,
The Chase Manhattan Bank, as Purchase Contract Agent and as attorney-in-fact for
the holders of Units from time to time, and the undersigned, as Collateral
Agent. Capitalized terms used but not defined in this certificate shall have the
meanings set forth in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities or
security entitlements to them has been credited to the Collateral Account by or
for the benefit of _________, as Holder of Units (the "HOLDER"), you are
instructed to release from the Collateral Account an equal Value of Debentures
or security entitlements to them relating to ______ Corporate Units of the
Holder by Transfer to the Purchase Contract Agent.
BANK ONE, NATIONAL ASSOCIATION
Dated: By:
---------------------- -------------------------------------
Name:
Title:
B-1
35
Please print name and address of Holder:
---------------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
Address
B-2
36
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate Unit)
Bank One, National Association
[Address]
Re: ________ Units of New NiSource Inc. (the "Company")
Please refer to the Pledge Agreement dated as of [______________], 2000
(the "PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, Bank One,
National Association, as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of Units from
time to time. Capitalized terms used but not defined in this certificate shall
have the meanings set forth in the Pledge Agreement.
We notify you in accordance with Section 5.3(a) of the Pledge Agreement
that the holder of securities listed below (the "HOLDER") has elected to
substitute Debentures or security entitlements to them in exchange for
$__________ Value of Pledged Treasury Securities and has delivered to the
undersigned a notice stating that the Holder has Transferred such Debentures or
security entitlements to them to the Securities Intermediary, for credit to the
Collateral Account.
We request that you instruct the Securities Intermediary, upon confirmation
that such Debentures or security entitlements to them have been credited to the
Collateral Account, to release to the undersigned $__________ Value of Treasury
Securities or security entitlements to them related to _____ Treasury Units of
such Holder in accordance with Section 5.3(a) of the Pledge Agreement.
The Chase Manhattan Bank
Date: By:
----------------- ------------------------------------
Name:
Title:
C-1
37
Please print name and address of Holder electing to substitute Pledged
Debentures or security entitlements to them for Pledged Treasury Securities:
---------------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
Address
C-2
38
EXHIBIT D
INSTRUCTION FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate Unit)
Bank One, National Association
[Address]
Re: ________ Units of New NiSource Inc. (the "Company")
Securities Account No. _________________entitled "Bank One, National
Association, as Collateral Agent, Securities Account (New NiSource
Inc.)" (the "Collateral Account")
Please refer to the Pledge Agreement dated as of [______________], 2000
(the "PLEDGE AGREEMENT"), among the Company, you, as Securities Intermediary,
The Chase Manhattan Bank, as Purchase Contract Agent and as attorney-in-fact for
the holders of Units from time to time, and the undersigned, as Collateral
Agent. Capitalized terms used but not defined in this certificate shall have the
meanings set forth in the Pledge Agreement.
When you have confirmed that $_________ Value of Debentures or security
entitlements to them has been credited to the Collateral Account by or for the
benefit of _________, as Holder of Units (the "Holder"), you are instructed to
release from the Collateral Account $__________ Value of Treasury Securities or
security entitlements to them by Transfer to the Purchase Contract Agent.
BANK ONE, NATIONAL ASSOCIATION
Dated: By:
----------------- ------------------------------------
Name:
Title:
D-1
39
Please print name and address of Holder:
---------------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
Address
D-2
40
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The Chase Manhattan Bank
[Address]
Re: _________ Units of New NiSource Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of [______________], 2000
(the "PLEDGE AGREEMENT"), by and among you, the Company, Bank One, National
Association, as Collateral Agent and the undersigned, as Securities
Intermediary. Unless otherwise defined in this certificate, terms defined in the
Pledge Agreement are used in this Certificate as defined therein.
In accordance with Section 5.5(d) of the Pledge Agreement, we notify you
that as of 11:00 a.m., [(on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date)], we have received (i) $_____ in immediately
available funds paid in an aggregate amount equal to the Purchase Price to the
Company on the Purchase Contract Settlement Date with respect to __________
Corporate Units and (ii) $_________ in immediately available funds paid in an
aggregate amount equal to the Purchase Price to the Company on the Purchase
Contract Settlement Date with respect to ______ Treasury Units.
Bank One, National Association
Dated: By:
---------------- -------------------------------------
Name:
Title:
E-1
